BHA INDUSTRIES PTY LTD t/as FORRESTER HOMES v GOROKAN DISPLAY VILLAGE PTY LTD [1998] NSWCA 40

BHA INDUSTRIES PTY LTD t/as FORRESTER HOMES v GOROKAN DISPLAY VILLAGE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 27 October 1998, 10 November 1998

[1998] NSWCA 40 PRACTICE — AMENDMENT — DISCRETION OF TRIAL JUDGE TO REFUSE CONTRACT — IMPLIED TERMS

The appellant, a builder of homes, unsuccessfully sued the respondent, the manager of a display village, for breach of contract. The appellant had purchased two lots in the respondent's village, upon one of which it had erected a display home. The display home was unsuccessful and no sales were forthcoming. The appellant alleged that this failure was due to the way in which the respondent managed traffic flow around the display village, leading to few customers inspecting its display home. The appellant argued that this conduct was in breach of implied terms in the Promotion Agreement between the parties.

On the third day of the trial, the appellant sought leave to amend its statement of claim to include damages for breach of the Trade Practices Act 1974 (Cth), s51A and s52. The trial Judge refused leave on the basis that such leave would disrupt the trial and be unfairly prejudicial to the respondent.

HELD, dismissing the appeal: (1) The appellant alleged four terms should have been implied into the contract. The trial Judge's finding that only the first of these existed was correct. BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, applied. (2) The finding that the other implied terms had not been breached was correct. (3) The trial Judge's decision to refuse leave to amend to raise the Trade Practices Act claims was a proper exercise of his discretion. The appellant still had the opportunity to commence separate proceedings based on the Trade Practices Act claims with a low probability of any estoppel-type defence succeeding. There had been no substantial injustice to the appellant. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, and Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 considered. (4) Leave had also been refused to allow the appellant to plead a defence to the respondent's cross-claim based on the Trade Practices claims. This decision was not affected by error, and was also affirmed.